Court ruling in door dispute raises question about future of Surplus Direct Liquidation

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This article was published 27/07/2021 (1581 days ago), so information in it may no longer be current.

A judge has slammed the door on a nearly decade-long dispute involving two Main Street business neighbours and access to an emergency fire exit.

The decision puts a question mark over the future of Surplus Direct Liquidation, which has been doing business from 843 Main St. since 2007. Surplus Direct shares a rear exterior wall with neighbour Top Pro Roofing Ltd., which moved into 847 Main St. in 2011.

Surplus Direct filed a lawsuit against Top Pro, alleging the business has blocked Surplus Direct from accessing its own fire door in the shared space.

Central to Surplus Direct’s case was an argument the door had been built in the 1940s, making it subject to then-existing building codes, grandfathering it to the present day.

In 2013, the City of Winnipeg, an intervener in the case, issued Surplus Direct an order to vacate, alleging the fire door and other building features did not comply with current building codes. Surplus Direct owner Robert McDonald argued it would be cost-prohibitive and unnecessary to force the business to build to modern standards.

The order was put on hold pending the outcome of the lawsuit.

In a decision released July 15, Queen’s Bench Justice Shane Perlmutter ruled it was more likely the fire exit or “man door” (a standard swing-style door) was built in the 1980s, as a journeyman bricklayer testified at trial, not 40 years earlier as Richardson contended.

No record exists showing when the door was installed. While building permits for older buildings can be hard to track down, the man door is not indicated on any of the plans, permits or inspection reports for the building, Perlmutter said.

Additionally, a 1959 aerial photo McDonald produced of the building does not show the door, Perlmutter said.

The only first-hand evidence the door existed in the 1940s came from a 2019 affidavit by then 86-year-old Allen Adelman, who has since died. In the affidavit, Adelman said he remembered using the door between 1945 and 1963 when his father operated a business out of the building.

Perlmutter rejected Adelman’s affidavit as unreliable, saying it was inconsistent with other evidence before the court. Because he had died, Adelman’s evidence could not be cross-examined in court, further diminishing its value to the court, Perlmutter said.

In a statement of claim filed last year, Surplus Direct alleged it and every other owner of the property since 1945 “have continuously, and as a right, made use of the man door as an ingress/egress, mainly for the purposes of an emergency exit.”

“In order for the man door to be operational and functional, it must swing open and encroach onto 847 Main (St.) a reasonable amount.”

In late 2013, Top Pro erected a fence in the area, blocking Surplus Direct’s access to the door, the statement of claim alleges.

“Initially, the plaintiff was given a key for access, but was requested to return the key in 2014. The defendants have since not provided any access to the plaintiff,” the statement of claim states.

Surplus Direct argued in the statement of claim that “uninterrupted and acquiesced” use of the man door had granted the business a “prescriptive easement” to use the door and access the adjoining property.

Surplus Direct abandoned the easement argument prior to coming to trial. Without an easement, there is no guarantee Surplus Direct would have a safe exit out the man door in case of an emergency, Perlmutter said.

“Without a legal right of access to the defendant’s property, there is no assurance the man door will provide a safe exit from Mr. McDonald’s building across the defendant’s property,” Perlmutter said.

McDonald could not be reached for comment Tuesday.

dean.pritchard@freepress.mb.ca